Orissa high court while hearing a criminal appeal regarding a 30- year old case of attempt to rape acquitted the appellant and said “the victim tried to put the entire blame upon the appellant as perpetrator of the crime, in order to save her own skin among her family members as well as in her society.”
Facts
The appellant was allegedly caught forcing himself on the victim by her brother when they heard the victim’s call for help. The victim alleged that the appellant broke into the house at night, sneaked into her room and disrobed her, and tried to rape her when she cried for help. The appellant and the victim were found in a compromised condition after which the brother of the victim assaulted the appellant with firewood. The appellant was arrested after the FIR and trial court took the matter. After considering the statement of witnesses and the victim’s statement herself the trial court convicted the appellant under section 376/511,354 and457 of IPC and sentenced him to 3 years of rigorous imprisonment for an attempt to rape and one year of rigorous imprisonment for housebreaking at night. Aggrieved by the trial court’s decision he accused filed the appeal in the high court.
Appellant’s contentions
The learned amicus curiae appearing for the appellant contended that the victim was a consenting party in the sexual intercourse and when her family caught her with the appellant she brought false accusations against the appellant to save herself. The counsel further submitted that the allegation of attempt to rape wasn’t brought against the appellant in the initial report and there was no medical examination of the victim. The counsel finally submitted that due to the aforementioned reasons the benefit of doubt must be given to the appellant and he must be acquitted.
Respondent’s submissions
The respondent’s counsel submitted that there was cogent evidence against the appellant and the victim’s testimony alone was enough to prove the charges against the appellant and it did not even require any further corroboration. Thus the respondent side pleaded that the court shall dismiss the plea.
Court’s Decision
The single-judge bench of Justice SK Sahoo observed that there was no allegation of rape in the FIR and there was no medical evidence relating to the commission of rape on the victim. The court further found multiple discrepancies in the victim’s statements and stated that the victim cannot be said to be a ‘truthful witness’. From the evaluation of the facts, the court noted that there were multiple instances according to the victim’s narrative when she could’ve shouted or called for help when the appellant was committing the offense, the court thus reached the conclusion that the victim was rather a consenting party to the intercourse and commented: “it is evident that the appellant had entered inside the room of the victim in the night but the victim’s conduct and her late reaction in raising shout probably on the arrival of P.W.2(her brother) make it clear that she was a consenting party and after having been caught red-handed with the appellant in a compromising position inside her bedroom in the night by P.W.2, the victim tried to put the entire blame upon the appellant as perpetrator of the crime, in order to save her own skin among her family members as well as in her society.” The court further expounded on the ‘consent’ of the victim and remarked “Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn only basing on evidence or probabilities of the case. ‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of the act complained of. If the victim fails to offer sufficient resistance, the Court may find that there was no force or threat of force or the act was not against her will.” Thus the court set aside the trial court’s conviction under section 376/511 for an attempt to rape.
The court further opined that there was not enough evidence to prove offense of lurking house-trespass under section 457 IPC but found that the appellant was guilty of house-trespass punishable under section 448 IPC. Taking into account that the appellant already served seven months in prison and the case was 30 years old, the court reduced the sentence to what the appellant already served allowed the appeal in part.
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